Free Speech

I assume that conservatives’ spirited defense of free speech in fighting the California law banning the use of gay conversion therapies for minors means that they will provide equally full-throated arguments in favor of other sorts of speech that would expose children to ideas about sexuality that could potentially damage them, such as the display of pornography in convenience stores next to schools.

23 comments on this post.
  1. John Costello:

    Or indeed, therapies that are intended to convert heterosexual teens to homosexuality. (“Gay conversion” the other way round.)

  2. Erik Loomis:

    Now we’re talking.

  3. Malaclypse:

    Everybody knows the gays do that already, with their fabulousness.

  4. Lev @ LibraryGrape.com:

    It’s a Republican district judge, so this is no shocker. No way this gets past the Ninth, and I highly doubt Kennedy would vote to overturn. Since when is it a violation of free speech to put restrictions on a professional license? You give up certain freedoms when you get one anyway, like the freedom to drive by an accident on the road if you’re a medical practitioner.

    This is just a spite thing. The Prop 8 people tried to block this with a ballot proposition, but they couldn’t even gather enough signatures to qualify.

  5. Jerry Vinokurov:

    Perhaps there’s a deep legal subtlety which I’m missing here (I’m too lazy to go track down the full text of the opinion) but if indeed this:

    But because the therapy mainly involves speech, Judge Shubb said, the ban must be justified under the most stringent legal standard, called “strict scrutiny.” He said it could bar “a mental health provider from expressing his or her viewpoints about homosexuality” during treatment.

    is the rationale here, then it seems like it would put at jeopardy far more than just conversion therapy. I mean, teaching also mainly involves speech; does this mean that schools cannot mandate science standards, including the teaching of evolution, because it could “bar an education provider from expressing his or her viewpoint about evolution” during teaching?

    In short, this seems like a completely idiotic line of reasoning.

  6. rea:

    Is FRCivP 11 also a free speach violation?

  7. NVWilkins:

    What if the state just forced them to read out a 15 minute pro-gay speech before each session? I hear it is totally ok if the service they are providing is abortion.

  8. MAJeff:

    As we used to chant, “10 percent is not enough! Recruit! Recruit! Recruit!”

  9. Hogan:

    I was blundering toward that joke, but you nailed it.

  10. Substance McGravitas:

    The law involves mostly speech, so anybody should be able to say anything they like in a courtroom, you goddamned idiot judge.

  11. Malaclypse:

    Since when is it a violation of free speech to put restrictions on a professional license?

    Since the insane idea of “conscience clauses” took hold.

  12. L.M.:

    Indeed, basically everything that attorneys do is speech. I, for one, am pleased that state actors have no power to regulate the legal profession.

  13. Manju:

    Since when is it a violation of free speech to put restrictions on a professional license?

    Lets say the State of Mississippi bans licensed therapists from practicing Freudian, Existential, or Feminist Therapy on minors. Problematic, no? Then lets say they require anyone who wants to practice to get a professional license first. They’re making an end-run around the 1A.

  14. Manju:

    I mean, teaching also mainly involves speech; does this mean that schools cannot mandate science standards, including the teaching of evolution, because it could “bar an education provider from expressing his or her viewpoint about evolution” during teaching?

    The State requires Parents to send their children to school. When there is a captive audience, the speech can be more regulated. Parents are not required to send their kids to therapy.

    But yes, teaching is still activity that’s considered speech…it just does not go thru strict scrutiny.

  15. Malaclypse:

    Let’s say there are, in the real world, “therapy centers” where minors can be checking in, against their consent, while they are not a danger to self or others, and they cannot check out, and large numbers of these minors end up killing themselves.

    That’s a really bad sort of “professional”. The sort that non-insane people should be able to agree should not have a license.

  16. Manju:

    This could be an argument as to why a law banning gay conversion therapies for minors should pass strict scrutiny (and presumably why a law banning Freudian ones should not). Suicide stats would certainly speak to a compelling governmental interest.

    Buts thats not the issue I was addressing. I was arguing that the law in fact a form of censorship. To argue otherwise…that there isn’t even a free speech issue at stake here…would put a lot of therapists at the mercy of the State with no constitutional recourse.

  17. Alex:

    That might be a bad law, but I don’t see why it would be unconstitutional. It seems like you are arguing that if a profession mostly involves communication it can’t be regulated. That would rule out licensing lawyers as well. CA isn’t saying that people can’t talk about conversion therapy or even campaign for the repeal of the law. They are just requiring that professional therapists comply with a standard of care, to avoid harming their patients. This seems like a really proper use of professional licensing.

  18. Alex:

    And I see I should have read the rest of the comments where this same point was made several times.

  19. Manju:

    That might be a bad law, but I don’t see why it would be unconstitutional. It seems like you are arguing that if a profession mostly involves communication it can’t be regulated.

    I’m not arguing that professions involving communication can’t be regulated. You could regulate electric shock therapy, even though the professional involved communicates. Nor am I saying that the communication itself can’ be regulated.

    I’m saying regulations of activities with expressive components raise 1A problems. They may still be constitutional, but they must go thru Judicial Review as a 1A issue. I’m arguing against the idea that “restrictions on a professional license” cannot violate the 1A. That’s too broad. If there is an expressive component to the activity being regulated, they can.

    IMO, when it comes to speech, the burden of proof should be on Government to demonstrate constitutionality. That burden may be low (as with commercial speech) or it may be high (political speech) but the burden should be there.

  20. David Nieporent:

    Well, no. One can see the seeds of such an idea in Pierce and Meyer from the 1920s, but certainly at least since 1976, when the Supreme Court held in Virginia State Pharmacy Board v. Virginia Citizens Consumer Council that “license” is not some magic word that automatically permits censorship; the Court followed that up in 1977 with Bates v. State Bar of Arizona, that it was a violation of free speech for the bar to tell lawyers they couldn’t advertise.

    Of course, a “conscience clause” is only “insane” to someone without one.

  21. David Nieporent:

    No, it does not mean that schools cannot mandate science standards; teachers teaching in a classroom is government speech (that’s a legal term of art), not private speech. It does mean, however, that schools cannot tell private school teachers what they can teach.

    And for that, you can go back to Meyer v. Nebraska, at least.

  22. David Nieporent:

    That the laws must satisfy the first amendment does not mean the government has “no power” to pass them. It means that they must pass a level of scrutiny.

  23. Malaclypse:

    Of course, a “conscience clause” is only “insane” to someone without one.

    I look forward to you taking my case, after I enlist in the Army, then decide my conscience as a Quaker prevents me from serving, but entitles me to a paycheck.

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